Tuesday, June 16, 2015
Just a couple of thoughts on ASARCO.
I think that the dissent was closer to being right than the majority opinion was (of course I think so: I was one of four folks on this amicus brief), and that Congress should fix the problem by adopting the test that we proposed in our brief (fees for substantially prevailing). The majority opinion will tempt parties who like objecting to fees for strategic reasons to do more of these types of objections; professionals may respond by increasing their base rates (or increasing them more rapidly) to take the possibility of objections (and unreimbursed defenses) into account; and a court's only likely response is to consider whether really obviously strategic-only objections were actually frivolous. On the other hand, there's still the "you don't object to mine, and I won't object to yours" behavior, so maybe the opinion won't have as drastic an effect as I fear.